Hammond v. Hammond, 86-200
| Decision Date | 14 August 1986 |
| Docket Number | No. 86-200,86-200 |
| Citation | 11 Fla. L. Weekly 1789,492 So.2d 837 |
| Parties | 11 Fla. L. Weekly 1789 Linda S. HAMMOND, Appellant, v. Frank Raymond HAMMOND, Appellee. |
| Court | Florida District Court of Appeals |
John M. Starling, of Holland, Starling & Severs, P.A., Titusville, for appellant.
Joan H. Bickerstaff, Melbourne, for appellee.
Linda Hammond appeals from an order modifying a final judgment of dissolution by reducing her former husband's child support obligation both retroactively and prospectively. Appellant asserts (1) that the trial court lacked power to modify the final judgment without there being before it a petition for modification and (2) the unpaid arrearages of child support were vested property rights which the court could not divest. We agree on both issues and reverse.
In the final judgment of dissolution of marriage Frank Hammond was ordered to pay "as child support the sum of $182.00 per week, ... for the support and maintenance of the minor children ... until such time as both minor children become 18 years of age ..." (Emphasis added). In her petition for enforcement of child support Linda alleged that Frank had failed and refused to pay the $182 since June 3, 1985 and was indebted in the amount of $4,368. She asked that appellee be found in contempt for his failure to pay. The husband's response contained certain assertions under the heading "Affirmative Defenses," among which was that one of the children had attained the age of majority and that appellee had thereafter offered the wife child support payments for one-half of the originally ordered amount, which offer appellant refused to accept. Appellee contended that he should not be required to continue paying the full amount of child support once one child reached majority and asked the court to either deny the wife's petition or order her to accept the past-due support payments in an amount equal to one-half the amount originally ordered to be paid.
At the hearing on Linda's petition, without hearing evidence as to the needs of the minor child or Frank's ability to pay or otherwise as to changed circumstances, the court entered an order decreasing child support to $100 per week retroactive to approximately the time when the one child had come of age. This appeal is from that order.
A trial court is not obligated to state separately the amount of support awarded for each child, but may, in its discretion, award a lump sum for several children. Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). As the court noted in Jones, there are cases in which the support awarded for several children is not sufficient in amount, but is all that the spouse can afford to pay. Therefore, to require an equal division for each child and an automatic reduction in the amount upon each child reaching majority would be inadequate in such cases. 330 So.2d at 539. When the final judgment awards a lump sum amount for several children, it becomes necessary for the husband to petition for an order reducing the amount when one child attains majority. Witlin v. Witlin, 206 So.2d 275 (Fla. 3d DCA 1968). See also Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978). A trial judge cannot modify a judgment calling for child support payments unless the issue of modification is presented by appropriate pleadings...
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